LOAN MODIFICATION AGREEMENT
(December 2002)
THIS LOAN MODIFICATION AGREEMENT is made as of December
31, 2002 (the "Effective Date"), by and among MAUI LAND &
PINEAPPLE COMPANY, INC., a Hawaii corporation, hereinafter called
the "Borrower", and BANK OF HAWAII, a Hawaii banking corporation
("BOH"), FIRST HAWAIIAN BANK, a Hawaii banking corporation
("FHB"), CENTRAL PACIFIC BANK, a Hawaii banking corporation
("CPB"), and AMERICAN AGCREDIT, PCA, a corporation or association
organized and existing under the laws of the United States of
America ("PCA") (BOH, FHB, CPB and PCA are each sometimes called
a "Lender" and are collectively called the "Lenders"), and BANK
OF HAWAII, as Agent for the Lenders to the extent and in the
manner provided in the Loan Documents described below (in such
capacity, the "Agent"), and KAPALUA LAND COMPANY, LTD., a Hawaii
corporation (the "Accommodation Party").
Recitals:
A. The Lenders (i) have made available to the Borrower
Revolving Loans in the aggregate principal amount of up to
$25,000,000 at any one time outstanding, and (ii) shall make
available to the Borrower Term Loans in an amount up to the
aggregate principal amount of the Revolving Loans outstanding
upon expiration of the Revolving Loan Period, but not to exceed
$15,000,000, all as more particularly described in that certain
Amended and Third Restated Revolving Credit and Term Loan
Agreement dated December 31, 2001, made by and among the
Borrower, Lenders and Agent (the "Loan Agreement").
B. Capitalized terms used, but not defined in this
Agreement, shall have the meanings given them in the Loan
Agreement.
C. The performance of the Borrower under the Loan
Documents is secured by the following (as amended and confirmed,
collectively, the "Mortgages") made in favor of the Lenders:
(1) Mortgage and Security Agreement dated
March 1, 1993, made by the Borrower, as Mortgagor, recorded in
the Bureau of Conveyances of the State of Hawaii (the "Bureau")
as Document No. 93-036896;
(2) Mortgage and Security Agreement dated
March 1, 1993, made by the Borrower, as Mortgagor, recorded in
the Bureau as Document No. 93-036898; and
(3) Additional Security Mortgage and Security
Agreement dated March 1, 1993, made by the Accommodation Party,
recorded in the Bureau as Document No. 93-036900.
D. The Borrower has requested certain modifications
of the Loan Documents and the Lenders are willing to agree to
such modifications under the terms and conditions of this
Agreement.
Agreements:
NOW, THEREFORE, in consideration of the premises, the
mutual covenants set forth herein and other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties do hereby agree as follows:
1. Amendments to the Loan Agreement: The Loan
Agreement is amended as follows:
(a) Section 9.17 is amended to read in its
entirety as follows: 9.17 Expiry Date
means December 31, 2004.
(b) Section 9.36 is amended to read in its
entirety as follows: 9.36 Maturity
Date means December 31, 2007.
(c) In Section 1.6, the grid setting forth
the Applicable Margin based on the Borrower's Recourse Debt
to Net Worth ratio is amended in its entirety to read as
follows:
Recourse Debt/ Applicable Margin Applicable Margin
Net Worth for Revolving Loans for Term Loans
Less than or equal 1.50 percentage 1.75 percentage
to 0.20 points points
Greater than 0.20 1.75 percentage 2.00 percentage
but less than or points points
equal to 0.40
Greater than 0.40 2.00 percentage 2.25 percentage
but less than or points points
equal to 0.60
Greater than 0.60 2.25 percentage 2.50 percentage
but less than or points points
equal to 0.75
Greater than 0.75 2.50 percentage 2.75 percentage
but less than or points points
equal to 0.90
Greater than 0.90 2.75 percentage 3.00 percentage
points points
(d) Notwithstanding anything to the contrary
contained in the Loan Documents, in the event of the sale of
any of the Borrower's real estate, other than the Collateral
and the lots in the Kapua Village Employee Subdivision, the
Aggregate Loan Commitment shall be reduced by an amount equal
to 50% of the net cash proceeds received by the Borrower
from such sale, provided, however, that the Aggregate Loan
Commitment shall not be less than $20,000,000. As used
herein "net cash proceeds" shall mean an amount equal to the
gross sales price, as and when received, less customary real
estate broker's commissions and seller's normal closing costs.
(e) Section 5.10(a) is amended so that the
Debt Service Coverage Ratio shall be not less than 1.10 for the
fiscal year 2003 and shall be not less than 1.20 thereafter.
(f) Section 5.10(c) is amended to allow a
one-time adjustment which will reduce the Borrower's minimum
Net Worth requirement by the non-cash component related to the
Borrower's fiscal year 2002 write-down of its pension plan
asset in an amount not to exceed $4,150,000.
(g) The Borrower's negative covenant in
Section 6.5 is amended to read in its entirety as follows:
6.5 Capital Expenditures. Make any Capital
Expenditure in excess of $12,000,000 in a fiscal
year. However, for the fiscal year 2003, subject
to the Agent's satisfactory review of (i)
projected monthly financial statements for such
fiscal year, which shall be supplied by the
Borrower to the Agent no later than January 31,
2003 and which shall be in line with the financial
performance indicated in the Borrower's Long Range
Plan dated October 2002, and (ii) the Borrower's
financial reporting submission for the quarter
ended 6/30/03, if the Borrower's financial
performance in terms of net income and cash flow
(A) through the first 6 months of the year remains
in line with the projected performance for that
period; and (B) the Borrower remains on track to
meet its Long Range Plan forecast for the full
year, the Capital Expenditure limitation will be
increased to $19,730,000. If, however, following
that increase, it is determined that the Borrower
will not meet its original forecast, the Borrower
must provide written notification of such to the
Agent within 24 hours of such determination and
further Capital Expenditures exceeding $12,000,000
for fiscal year 2003 shall be subject to the
approval of the Lenders.
2. Amendment Fee and Costs: In consideration of, and
as a condition to, the amendments herein contained, the Borrower
shall pay the Agent, on demand, for distribution to the Lenders
on a pro rata basis, a $25,000 amendment fee. The Borrower shall
also promptly reimburse the Agent for all costs and expenses,
including reasonable attorney's fees, incurred by the Agent in
connection with this transaction.
3. Modification: This Agreement is a modification
only and not a novation. In all other respects, the terms and
conditions of the Loan Documents, as hereby modified, are hereby
ratified and confirmed and shall remain in full force and effect.
4. Reaffirmation and Enlargement: The Borrower
confirms and reaffirms all of its representations, warranties
and covenants in the Loan Documents. The execution of this
Agreement by the Borrower constitutes the certification of the
persons signing this Agreement on behalf of the Borrower that,
to the best of their actual knowledge, the representations and
warranties made in Article IV of the Loan Agreement are true and
correct as of the date of this Agreement. All references in the
Loan Documents to the Loan Agreement are hereby enlarged and
expanded to mean and include the Loan Agreement as hereby
modified.
5. Mortgagors: The Borrower and the Accommodation
Party confirm the grant, pledge and mortgage of the properties
encumbered by the Mortgages, as and for continuing security for
the obligations of the Borrower under the Loan Documents. The
Borrower and the Accommodation Party warrant that the properties
encumbered by the Mortgages are subject to no liens or
encumbrances other than those set forth in the Mortgages.
6. No Offsets: The Borrower and the Accommodation
Party each agrees that to its actual knowledge it has no claims,
defenses, or offsets against the Lenders or the Agent with
respect to the Credit Facility or to the enforcement of the
Loan Documents arising prior to the date of this Agreement and
that all such claims, defenses and offsets are hereby released.
7. Successors and Assigns: This Agreement is
binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and assigns.
8. Counterparts: This Agreement may be executed
in any number of counterparts, each of which shall be deemed
an original and all of which taken together shall constitute
one and the same document, binding all of the parties hereto,
notwithstanding all of the parties are not signatory to the
original or the same counterparts. Duplicate unexecuted
pages of the counterparts may be discarded and the remaining
pages assembled as one document.
To signify their agreement, the parties have executed
this Loan Modification Agreement as of the Effective Date.
MAUI LAND & PINEAPPLE COMPANY, BANK OF HAWAII, individually
INC. and as Agent
By /S/ PAUL J MEYER By /S/ JAMES C. POLK
Name: Paul J. Meyer Name: James C. Polk
Title: Executive Vice/ Title: Senior Vice President
President/Finance
By /S/ JOHN KREAG
Name: John Kreag FIRST HAWAIIAN BANK
Title: Treasurer
Borrower By /S/ NEILL CHAR
Name: Neill Char
Title: Vice President
KAPALUA LAND COMPANY, LTD.
By /S/ PAUL J MEYER CENTRAL PACIFIC BANK
Name: Paul J. Meyer
Title: Executive Vice/
President/Finance By /S/ ROBERT D. MURAKAMI
Name: Robert D. Murakami
By /S/ JOHN KREAG Title: Vice President
Name: John Kreag
Title: Treasurer
Accommodation Party AMERICAN AGCREDIT, PCA
By /S/ GARY VAN SCHUYVER
Name: Gary Van Schuyver
Title: Vice President
Lenders